(a) Section 301(a) of the Clean Water Act (CWA) [33 U.S.C. § 1311] establishes statutory requirements for the discharge of pollutants from point sources to waters of the United States. Under CWA § 502(14) and implementing regulations “concentrated animal feeding operations” are point sources subject to the National Pollutant Discharge Elimination System (NPDES) program. The Regulations Governing the Control of Water Pollution, § 9.5 Concentrated Animal Feeding Operation, 7 DE Admin. Code § 7201-9.5, 14 Del. Reg. 482 (November 2010), as may be amended, are hereby ratified and approved. Said regulations, together with the State Technical Standards, are fundamental components of the CAFO NPDES Program. Nothing in this section shall be construed to require ratification or approval of any additions, deletions, revisions or amendments of any regulations enacted pursuant to this section at any time.
(b) The Secretaries of the Delaware Department of Agriculture (DDA) and the Department of Natural Resources and Environmental Control (DNREC) shall have authority to jointly promulgate and amend regulations for the CAFO NPDES Program, including but not limited to the authority to determine the extent to which any nutrient management plan (NMP), annual report, or other documents required to be submitted by a concentrated animal feeding operation permitted under the CAFO NPDES Program, shall be made public or not, and the authority to require any concentrated animal feeding operation to apply for and obtain an NPDES CAFO permit.
(c) Each person or concentrated animal feeding operation covered by this section or identified as requiring an NMP by DDA and DNREC shall develop and submit the requisite, signed NMP, on such terms and conditions as may be specified by DDA or DNREC. The NMP shall be developed in accordance with the provisions of § 2247 of this title, provided, however, that DNREC and DDA may prescribe additional or different requirements for an NMP submitted under the CAFO NPDES Program. As necessary, the NMP shall also include but not be limited to, the following additional site specific handling and storage considerations:
(1) Diverting clean water from contacting animal waste or litter;
(2) Preventing storage, collection and conveyance systems from leaking organic matter, nutrients and pathogens to ground or surface water;
(3) Providing adequate storage to prevent polluted runoff;
(4) Handling manure and litter to reduce nutrient losses;
(5) Managing dead animals to protect ground and surface waters;
(6) Proper chemical handling; and,
(7) Tillage and crop residue management practices.
The NMP shall be amended pursuant to § 2247(d) of this title or whenever there is any significant change in the design, construction or operation which has a significant effect on the potential for the discharge of pollutants to state waters, or as may be otherwise required by regulation.
(d) The Memorandum of Agreement between DDA and DNREC dated December 16, 2010 (MOA), is hereby ratified and approved. DDA has authority to fulfill the terms of the MOA, to undertake all actions ancillary to the MOA, and otherwise to contribute to the CAFO NPDES Program.
(e) The Secretary shall notify a person in writing that an NPDES permit is required. Such notice shall include a brief statement of the reasons for the decision, an application form, a deadline for submission of the application and a statement regarding the effective date of coverage. A person's obligation to independently seek and secure an NPDES permit is not conditioned upon or qualified by the Secretary's duty to notify a person that an NPDES permit is required.